point — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Point III. On the Manner of Seeking a Dispensation
- For granting dispensations of the Holy See, two tribunals, according to the diverse quality of the impediments, namely, the Datary and the Penitentiary, have been established at Rome.
I. The Datary. Recourse must be had to the Datary for all notorious impediments, or those which are foreseen as likely to come to the knowledge of others, or those which can be manifested without infamy, scandal, and other inconveniences.
II. The Penitentiary. Recourse must be had to the Sacred Penitentiary for dispensations and faculties which regard only the internal forum, namely, for occult impediments. In the petition, however, the proper names of the betrothed being kept silent, fictitious names are supplied 1.
1 At present, however, it is permitted to approach the Penitentiary even for notorious impediments when a dispensation is sought in forma pauperum.
- Questions. - QUESTION 1. How must a dispensation be sought if there are two impediments, of which one is public and the other occult?
Reply 1. If they are altogether disparate, recourse must be had to the Datary for the public impediment and to the Penitentiary for the occult one; nor is it necessary that mention be made before one tribunal of the dispensation sought or obtained from the other tribunal. Impediments are considered disparate when one is not increased by the other, as, for example, consanguinity and a vow, or consanguinity and machination.
Reply 2. But if they are not disparate, a dispensation from the public impediment must be sought from the Datary, with the other which must remain secret kept silent; and both must be expressed in the petition to the Penitentiary. The reason is that, from what has been said, they render the dispensation more difficult. But they must be held as not disparate when they are of such a nature that when joined they bring a greater repugnance to contracting marriage; for example, if someone wishes to marry a blood relative whose sister he shamefully knew. For then the dispensation is rendered more difficult. Hence in the aforesaid case the petitioner must seek from the Datary a dispensation from the impediment of consanguinity, and from the Penitentiary a dispensation from the impediment of affinity arising from an illicit cause, at the same time setting forth the other dispensation obtained from the Datary. - Thus commonly. - St. Ligorius, no. 1139.
- QUESTION 2. Must recourse be had to the Sacred PENITENTIARY so that the circumstance of intercourse had secretly between blood relatives may be manifested?
Reply 1. It is certain that there is no obligation to set forth occult intercourse in a petition to the Datary for the impediment of consanguinity. The reason is that no one is bound to defame himself, and otherwise this public revelation of occult incest is not prescribed.
Reply 2. But this circumstance must be manifested to the Sacred Penitentiary. The reason is that it is generally prescribed that intercourse had between blood relatives who wish to enter marriage be set forth. Now, since it is certain that there is no obligation to set forth occult intercourse in a petition to the Datary, because no one is bound to defame himself, and since it is not said in the precept that a public revelation of occult incest must be made, it follows that occult intercourse must at least be disclosed by a secret manifestation before the Penitentiary, lest the law become altogether useless and an exemption from a certain law be granted without any cause. Many formerly held the opposite; but today there is no longer any doubt concerning this, says St. Ligorius, no. 1135, after the Bull Pastor bonus of Benedict XIV 2.
2 It has already been said above that this precept or law of setting forth the occult circumstance of incest in the present case is not proved, nor does any force accrue to this opinion from the Constitution of Benedict XIV, which the Author adduces again.
- QUESTION 3. Is a dispensation sought in the form for the poor valid if the petitioners are not poor?
Reply. Affirmatively. The reason is that the obreption falls only upon the impulsive cause, but not upon the motive or final cause; for poverty is not the reason on account of which the dispensation is granted, but the reason on account of which it is granted gratuitously. Hence another motive cause must always be present. - Thus St. Ligorius in Homo Apostolicus, no. 87, where he says this is established from a decision of the Sacred Congregation of September 9, 1679. - Some nevertheless deny it, because, they say, the Pope does not intend to dispense except with those who are truly poor. - La Croix, no. 859. - Gousset, no. 866.
In practice, however, although those who obtain a dispensation in the form for the poor when they are not poor sin gravely, nevertheless, once the marriage has been contracted, it appears that one must stand for its validity, at least on account of the authority of St. Ligorius and the Sacred Congregation, unless this declaration is proved not to be authentic.
QUESTION 4. Who must be regarded as poor?
Reply. From Canon law they must be in some manner pitiable, since according to the style of the Curia the petition must be drawn up thus: The petitioners are poor and pitiable, and they live from their labor and industry. In practice the state of their fortune must be set forth, or one must stand by the rules given by the Bishop.
From a Declaration given by the Rectors of the Apostolic Datary in the year 1841, those whose fortune does not exceed the value of 5,000 francs are to be regarded as poor; but those whose fortune does not exceed the value of 10,000 francs are called nearly poor. - Bouvier, Dispensations from Impediments, sect. 3, section 3.
- QUESTION 5. How must a dispensation be executed?
Reply 1. As regards a dispensation of the Sacred Penitentiary, after absolution let it be made in these or similar words: By Apostolic authority I dispense you from the impediment N. which you incurred, so that you may enter marriage (or consummate one entered, or remain in it), and I render legitimate the offspring begotten (or to be begotten). In the name of the Father, etc.
But if the dispensation is from a vow of chastity, it is said: Moreover, by dispensing I commute for you the vow of chastity which you made, so that you may contract marriage and use it, into the works which I have prescribed for you. In the name, etc.
No formula is prescribed under pain of nullity, indeed not even under precept, for none is contained in the Roman Ritual. If the Confessor had omitted to legitimate the offspring, he could repair this omission; for then he would continue the cause committed to him and not yet completed. - Bouvier.
Reply 2. As regards a dispensation of the Datary: 1. The delegate for dispensing must inquire into the truth of the causes, as is contained in the Rescript; more probably, however, this inquiry is not required for validity. 2. He must declare before the parties and witnesses that the impediment of marriage is removed, and order that an attestation of this dispensation be written in the registers of the diocese. 3. He must transmit the Rescript of the Datary to the Pastor of either party with permission that he may assist at the marriage.
A dispensation from the Datary must always be sought through the Bishop. A dispensation from the Penitentiary, however, can be sought immediately by the petitioner or by another in his place. Nevertheless, it is safer and easier that this also be sought through the Bishop, with the name of the petitioner kept silent.
- QUESTION 6. How must a dispensation be obtained from Bishops when they can dispense by an Indult?
Reply. The same rules which are held as necessary in the Roman Curia must necessarily be observed in the case also, because it is the mind of the Supreme Pontiff that Bishops can use the apostolic concession in no other manner.
A Bishop dispensing by virtue of an Apostolic Indult must, under pain of nullity, express that he dispenses as a delegate of the Holy See from an Indult of delegation granted on such a day and year and to be valid for so many months or years; because the Indults commonly prescribe this, and Benedict XIV asserts in the Constitution Ad tuas manus, August 2, 1748, that this is then prescribed under pain of nullity.
- QUESTION 7. What are the clauses customarily appended in dispensations from the Sacred Penitentiary?
Reply. They are the following, namely: 1. If it is so. But faith must be given to the penitent unless the delegate certainly knows the opposite from knowledge received outside confession. 2. After first hearing sacramental confession. According to this clause, therefore, confession is necessary. 3. With the occasion of sin removed. It is understood if the occasion is voluntary, which must in fact be removed; but if it is necessary, let it at least be removed from the will by rendering it remote rather than proximate through the due means. 4. Provided that the impediment is occult. 5. A grave penance having been imposed upon him. It is understood according to the condition and strength of the penitent. 6. These presents being torn up, under pain of excommunication latae sententiae. This tearing up must be done immediately, but understand morally, namely, at least within three days after the dispensation has been executed. But if the clause of tearing up is not appended in the letters, as it is not appended when the marriage has not yet been contracted, then there is no obligation to tear them up; rather, a dispensation of this kind must be cautiously noted by the Pastor in a book which cannot be seen by anyone else, so that, namely, when there is need, he may be able to attest to the dispensation obtained. - St. Ligorius, no. 1143.
- QUESTION 8. How can the monetary tax imposed upon petitioners be reconciled with the Decree of the Council of Trent commanding that a dispensation be granted GRATUITOUSLY?
Reply. If money received on the occasion of dispensations were to accrue to the benefit of the one dispensing, the command of the Council of Trent would be violated and the dispensation would be simoniacal; but the matter does not stand thus. For the money is received only as an alms to be expended upon pious works 3.
3 It is not necessary that the cause for dispensing precede the granting of the dispensation, but it suffices that through the dispensation itself and its manner the cause itself be completed. For when a dispensation is given without cause, some satisfaction or fine is imposed for a pious work or for another common utility of the Church; through that work the cause of the dispensation arises, which is then made by way of commutation, just as we also said was done in the granting of Indulgences. Thus Suarez (On Laws, book 6, chapter 18, no. 26).
- QUESTION 9. How is a dispensation of the Sacred Penitentiary to be executed if the impediment is known and common to both contracting parties?
Reply. In this case each must be dispensed by his or her respective Confessor. This is established from a response of the Sacred Penitentiary, November 15, 1748. The same Rescript, however, can serve for two Confessors, and it must be torn up by the one who executes it later with his penitent. But if the impediment is known to only one party, a single execution is required. - Collet, Treatise on Dispensations. - Bouvier, etc.
- John N. (the proper name is inserted) and Anna N., of the parish commonly called N., Diocese of N., blood relatives in the equal second degree, desire to enter marriage with each other, and therefore humbly implore from Your Holiness the dispensation necessary for them. The reasons are: 1. THE AGE OF THE MAIDEN, who, now twenty-five years old, would probably not find another man whom she could suitably marry; 2. THE CHRISTIAN VIRTUES existing in each petitioner; 3. THE SMALLNESS OF THE PLACE. (Let other causes be inserted, if there are any.)
At N., on the ... day, etc.
P., Pastor of the Parish.
If they are poor, after the reasons have been set forth it is said: They are poor and pitiable, and live only from their labor and industry.
The petition drawn up by the pastor of the petitioners must be sent to the Bishop. The Bishop, or the Vicar General in his place, sends it, furnished with testimony, the episcopal seal, and signature, to his agent at Rome, who solicits the dispensation and transmits it to the Bishop.
- Titus, aware (or ignorant) of the impediment, contracted marriage in the face of the Church with a woman whose mother, daughter, or sister he had previously known carnally; wherefore, since they cannot be separated without scandal and the impediment is occult, he most humbly petitions Your Eminence graciously to grant him a dispensation so that he may contract validly.
Deign, Your Eminence, to direct the response to me, the undersigned.
Here the name and surname of the person to whom the reply is to be sent must be expressed; likewise the name of the town or city to which or through which it is to be sent, and these indeed in the vernacular language. Above the closed and sealed petition is written: To the Most Eminent and Most Reverend Lord Cardinal Major Penitentiary.
- Another form, when there is a twofold impediment, one public and the other occult.
Most Eminent and Most Reverend Lord,
Peter and Anna, blood relatives in the second degree, not in hope of obtaining a dispensation more easily 4, but overcome by mad lust, had intercourse together. John, however, Peter's brother, intends to marry Anna, a dowry having been established for her which she could not otherwise have according to the condition of her state. Both petition the Most Holy Lord that the Apostolic Datary deign to dispense with them concerning the said impediment of consanguinity. The petitioner Anna, however, humbly petitions Your Eminence that, by a special grace, you deign to dispense with her so that, notwithstanding the aforesaid entirely occult impediment of affinity arising from illicit intercourse, she may licitly and validly contract marriage with the said John.
4 These words are not pertinent; for the circumstance of intercourse previously had, with or without the purpose of obtaining a dispensation more easily, enters into the case only when it is a question of a marriage to be contracted between the incestuous persons themselves. But if the incest was committed without the purpose and hope of obtaining a dispensation, and it is a question of marriage to be entered between the incestuous persons themselves, we have already said (above, in the Notes to nos. 867 and 872) that there is no pressing necessity to set forth this circumstance, unless perhaps it is the only cause available for obtaining the dispensation.
- A certain maiden, approximately fifteen years old, knowingly and freely made a vow of preserving perpetual chastity; but now, in the judgment of the Confessor who has long heard her confessions, she would come into certain danger of salvation unless she marries. Wherefore she humbly and earnestly petitions that her vow be commuted for her to the effect of contracting marriage.
Deign, Your Eminence, etc.
Another Form concerning the Same Matter
- Titius, being bound by a vow of chastity and being in grave danger of incontinence, humbly petitions Your Eminence to deign to grant the petitioner a dispensation from the aforesaid vow, so that he may contract marriage, etc.
In addition, take care to observe these things concerning a petition:
- Petitions to the Datary in which the canonical causes are not expressed, or which lack the testimony of the Bishop or another required condition, are torn up, and no response is made by the Officials of the Sacred Congregation.
- In France a cause now occurs quite frequently which can be added in the petition, namely, a marriage civilly contracted, or the danger that it may be contracted. In that event, however, the dispensation is granted chiefly for the benefit of the bride, the offspring born or to be born, and the family, or to avoid scandal harmful to religion and morals.
- The form of dispensations now received both in the Penitentiary and in the Datary is commissorial; that is, the power of dispensing is given, but the dispensation itself is not precisely given. Hence it follows that the causes alleged must be true both at the time when the Rescript is issued at Rome and at the time when the dispensation is committed to execution; for in the Rescript it is said, if the matter is so, or something equivalent, or it is at least understood 5.
5 Others, however, with Garcia (On Benefices, part 6, chapter 2, no. 283) and Pyrrhus Corradus (Practice of Apostolic Dispensations, book 7, chapter 2, no. 32), think it sufficient that the cause exist at the time when the Delegate executes the Dispensation itself; because the words of the Rescript, If you shall find the matters to be true, etc., are in the future tense; and otherwise the Pontiff, saying in the Rescript, Not having certain knowledge of the foregoing, etc., appears to commit the business according to those circumstances which the Delegate will find. Suarez (On Laws, book 6, chapter 20, no. 14), with others (in De Iustis, On Matrimonial Dispensations, book 1, chapter 6, nos. 299-301), objects that the petition is subreptitious and that it must not be presumed that the Pontiff wishes to favor frauds. But the others will perhaps reply that a dispensation which is finally granted for a truly existing cause is not subreptitious; and the adversaries must readily agree that it will be valid if in the case the falsity was set forth not through deceit but in good faith. Wherefore they will derive the nullity of the dispensation not from the eventual defect of the cause, but from the crime of fraud, which the Pontiff wills to punish in this manner, even if otherwise the dispensation is granted for a truly existing cause. But this will be said less consistently by those who, according to the common opinion, hold that a dispensation obtained by one who, together with a true and sufficient cause, fraudulently adds in the petition other causes likewise sufficient in themselves but altogether false, is valid. Let the definition of this question, however, belong to wiser men.
- A dispensation for the internal forum is customarily committed to a Doctor in Theology or in Canon law, or, if one cannot be had, to a Confessor approved by the Bishop, who cannot execute the dispensation unless he has first heard the confession. But because in most places Confessors who are Doctors in Theology can now rarely be found, the faculty of dispensing is ordinarily committed simply to a Confessor to be chosen by the penitent.